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Kazaa Is Legal, Dutch Appeals Court Rules
Killjoy_b writes "
First, the courts in the Netherlands rule against Kazaa, in a higher appeal, the courts rule in favour of Kazaa saying "The software itself doesn't commit any illegal acts, it's the users that could do that, therefore the software is legal" Read the Dutch article on Webwereld
I like the way this turned out :)" Another Dutch reader wrote with this: " The Judge ruled that even if the users violated copyright, Kazaa did not. Important in the ruling were the facts that Kazaa does not rely on a central server, and that it is not bound to music or video files alone.
According to Webwereld (in Dutch) Kazaa is pondering if they should sue back for lost damages. After the first court ruling against Kazaa, they were forced to sell part of their business, for supposedly a too low prize. " And despite the the fact that both Taco and I are from Holland, MI, no, neither of us can speak/read Dutch - so don't ask us to translate. Update: 03/28 14:39 GMT by M : Reuters has an English summary.
"The Judge ruled that even if the users violated copyright, Kazaa did not."
"Duh" added the Judge.
Can this ruling in a foreign court be used as a reference for cases here in the US/UK? More importantly, can Kazaa be brought to court in the US, or does this ruling afford it some type of protection?
I am wondering if the judge in this case was in some manner technically savy, since he noted Kazaa didn't depend on a central server and thus the user network is out of its control, thus Kazaa was just considered a software provider and did not directly break any laws.
We will have to see how this affects other court cases surrounding p2p in other countries.
"I'll just chip in a bit for RedHat: I actually have that installed on my university machine." - Linus, '95
"In a setback for efforts to halt copyright abuse, a Dutch appeals court on Thursday told a technology firm it could distribute a software program that is designed to let users share music and films on the Internet."
Nice spin. Yes, there wasn't anything else at stake other than "copyright abuse". Nothing at all. And the efforts to halt copyright abuse? That's all they're trying to do - just halt abuse.
Sure.
FINALLY someone realises that hey, it's not the software that's doing the pirating. The software has actual legal (albeit underutilized) applications.
The users on the other hand, are the ones who take the tool and turn it to evil (insert diabolical music track here), depriving the MPAA of their hard-earned money. Except well, most of the 'bad users' buy a lot more music than the 'good users' anyway.. and the MPAA execs don't actually create the music they sell.. hrmm...
It'll be interesting to see what impact, if any, this will have on filesharing software in North America. Given the typical 'Our laws apply to you but yours don't apply to us' view of the US legal system, I'd say not much. Eh, at best it might give the software producers a safe haven in which to register their businesses. Go global village.
Moral indignation is jealousy with a halo - H. G. Wells
This judge couldn't have said it better. The program by itself doesn't violate anything besides interface aesthetics. I'm glad to see that there's still some common sense left. The Dutch tend to be very 'nuchter' (down to earth would be appropriate translation) towards the grey area of law and order. This prevented our (yes, I'm Dutch myself) society from becoming corporate-driven and claim oriented like American society. Kazaa itself did nothing wrong, so you can't punish them.
And instead of refocussing on the users of Kazaa who do illegal things (almost all users) all that corporate power should be spent building a system where people can legally obtain music. If the downloads are fast, the available tracks are 'what the people want' and the quality is good there is some serious money to be made. And the musicbusiness can have their precious profits back.
When Dutch museums feature paintings - many of them showing lustful, drinking, music-playing, partying people - the tags on the wall most often explain how the painting was done to illustrate that people should not live that way! The way life is actually lived and appreciated by the Dutch has long been at odds with what they say about it. This positive use of hypocrisy, once used to lead happy lives while paying lip service to Christian injunctions against happy behavior, is now used to allow not just pot but storefronts throughout the country selling organic psychedelics, while claiming, "Oh yes, this is illegal, we are in keeping with the broader European norms on that!"
Now, how does this fit with file sharing? Well, here creative hypocrisy isn't even needed, since it's clearly within the letter of the law. It's American courts which are going beyond both law and common sense, embracing monopolistic behavior as an extension of the puritan self-constraint we too often perversely pleasure ourselves by.
"with their freedom lost all virtue lose" - Milton
(Note: my English legal vocabulary is limited... but you'll get the gist)
Court: exchange service KaZaA is legal
Thursday, March 28 2002 The music exchange server KaZaA is not responsible for the copyright violations of the users of the program.
This is the decision of the court in Amsterdam. The Court nullified the decision of Judge R. Oribio de Castro in the case that Buma/Stemra [the Dutch copyright and royalties collector organisation] had set up against KaZaA.
According to Buma/Stemra KaZaA encourages with its program copyright violations The software is mainly being used to exchange music, without paying any royalty fees.
Oribio de Castro therefor declared that KaZaA should take countermeasures to end these violations of copyright. If KaZaA failed to comply, it would face severe fines. The founders of KaZaA then decided to sell the software to the Australian based Sharman company.
A bitter pill
Eventually, that hadn't been necessary. The Amsterdam Court ruled in the appeals case that KaZaA had set up against the sentence of Oribio de Casta, that KaZaA can not be held responsible for the copyright violations of the users of the program. "As far as there are any copyright relevant actions, these actions are performed by the users of the program and not by KaZaA"
Christiaan Alberdingk Thijm is very satisfied with the ruling, but still finds the complete proceedings 'a bitter pill'. CEO Niklas Zennström also says he received the ruling 'with mixed feelings'. "It's too late for KaZaA. I hope that music organisations like Buma/Stemra will, in the future, be prepared to make a deal instead of going to court", says Zennström.
Alberdingk Thijm thinks the Court has seen the differences between Napster and KaZaA very well. "Napster has a central server, which is not the case for KaZaA. Plus you could exchange more than just music."
The practice
"It remains to be seen what the practical implications of this ruling are for KaZaA", says KaZaA in a press statement. The exchange service claims that by the previous ruling they had to cease their activities worldwide, after which she sold her most important company assets.
This is, by the way, recognized by the Court: "It is reasonable to assume that she would not have taken these measures if she would have been able to comply in any other way with the president's ruling."
This means that Buma has enforced a sentece that is not valid, explains Alberdingk Thijm. "In theory, Buma is responsible for the sale against a lower price than would otherwise have been the case". It is still unclear if they are going to countersue the copyright organisation.
Buma/Stemra was unavailable for comment.
"Fix it? It has been disintegrated, by definition it cannot be fixed!" - Gru in Despicable Me.
I'm a little rusty, but here goes... the following is a rough, call it first draft translation of the WebWereld.NL article (c) I suppose on the original site. http://www.webwereld.nl
Courts: Exchange Service KaZaA is Legal
Thurs 28.03.2002 - The music exchange service KaZaA is not responsible for the copyright violations of users of its program.
That was the decision of the Court today in Amsterdam. The Court reversed the decision of Judge R. Oribio de Castro in the matter de Buma/Stemra had raised against KaZaA.
According to de Buma/Stemra KaZaA's program facilitated copyright violation. The software was used primarily for exchanging music without the authors rights being considered.
Oribio De Castro judged therefore that KaZaA had to take measures to stop copyright violation. Failure to do so would result in a heavy fine. The founders of KaZaA then decided to sell the software on the Australian firm Sharman.
A Little Bitter
That seems not to have been necessary. The Amsterdam Court overruled the judgement of Oribio de Castro, deciding that KaZaA was not responsible for the copyright violations perpetrated by its users. "Inasmuch as authors rights are relevant the actions are taken by the users of the software and not by KaZaA".
Christiaan Alberdingk Thijm is very satisfied with the judgement, but was a little bitter about how the whole thing had run its course. Also the CEO Niklas Zennstrom took the judgement "with mixed feelings". "For KaZaA this comes too late. I hope that music organisations [publishers?] like Buma/Stemra will be more amenable to making an agreement rather than just taking it to the courts" according to Zennstrom.
The court clearly distinguished between Napster and KaZaA, according to Alberdingk Thijm "Napster has a central server, which is not the case with KaZaA. Furthermore, fate played to our side in that not just music can be exchanged with KaZaA".
Practical Application
"It remains to be seen what the practical application of this ruling is for KaZaA", said KaZaA in a press release. The exchange service said that the previous judgement forced the shutdown of their world-wide operations, after which they sold their most important business components.
This was recognized by the court: "One may assume that they [KaZaA] would not have taken these measures had they had in their power any other way to obey the [previous] judgement"
This means that Buma forced a judgement to be executed that was not valid, explains Alberdingk Thijm. "In theory, Buma is therefore responsible for the fact that the sale was done at a price much lower than was otherwise the case". It is not yet clear whether steps will be taken against the copyright organisation.
Buma/Stemra could not be reached for comment.
Ask anyone in the media business -- the newsfeed that comes out of Reuters has steadily degenerated over the past several years.
They say they apply the spin that they do in order to maintain impartiality and retain access in less friendly countries around the world. A rather infamous quote from them, in response to criticism of their coverage of September 11: "One man's terrorist is another man's freedom fighter."
However, in the process they have become nothing more than a clearinghouse for press releases. They no longer engage in any real investigative journalism because such investigations must have some angle going in and will always piss someone off. Reuters would rather keep their access and not step on any toes.
Stick to the Associated Press.
Would it hurt to get your facts right? First of all, the suit in America was against McDonalds, not Starbucks. Second, it wasn't decided by a judge, it was decided by a jury, making your entire point moot. If you're going to accuse someone of not being smart, at least get your story straight.
If it ain't broke, you need more software.